Bowen Hunsaker Hirai Consulting, Inc. v. Turk

• Court: Hawaii Intermediate Court of Appeals
• Decided: May 21, 2010
• Docket: 30182
• Status: Published

Opinion

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NO. 30l82

IN THE INTERMEDIATE COURT OF APPEALS §§

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oF THE STATE oF HAWAI‘I

BOWEN HUNSAKER HIRAI CONSULTING, INC Petitioner-Appellee,

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V.

DAVID TURK, HARUMI TURK, DAVID TURK LLLC, MARJET, INC., HAYASHI TRANSPACIFIC, INC. and HAYASHI TRANSPACIFIC AIRCRAFT, INC., Respondents-Appellants

`APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P. NO. 09-l-O227)

ORDER OF DISMISSAL (By: Nakamura, Chief Judge, Foley and Leonard, JJ.f

Upon review of (l) the April l5, 2010 order granting

the motion to withdraw the appeal as to Respondent-[Former] Appellant David Turk LLLC and (2) the record on appeal, it

appears that Respondents-Appellants David Turk, Harumi Turk,

Marjet, Inc., Hayashi Transpacific, Inc., and Hayashi

Transpacific Aircraft, Inc. (collectively, Appellants)1 seek

appellate review of the portion of the Honorable Gary W. B.

Chang's October l9, 2009 "Order Granting in Part and Denying in

Part Petitioner Bowen Hunsaker Hirai Consulting, Inc.'s Petition

to Compel Mediation and/or Binding Arbitration Filed July l0,

2009" (the October l9, 2009 order) that grants Petitioner-

Appellee Bowen Hunsaker Hirai Consulting, Inc.'s petition to

compel mediation and arbitration as to Appellants.

Hawafi Revised Statutes § 658A-28(a)(l) (Supp. 2009)

authorizes an appeal from an order denying a motion to compel arbitration, but does not authorize an appeal from an order compelling arbitration.

In certain contexts, HawaFi appellate courts have held that,

under the collateral order doctrine,

n [a] n order granting a motion to compel arbitration is final and

appealable" because it "is one of that small category of orders

1 As David Turk LLLC is no longer seeking to appeal the circuit

court's order, it is not considered one of the Appellants for the purposes of this order.

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

which finally determine claims of right separable from and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudiCated." Sher V. Cella, ll4 HaWaiH.263, 266-67, l6O P.3d l250, l253-54 (App. 2007) (citation and internal quotation marks omitted). However, in a special proceeding filed for the purpose of petitioning the court to compel arbitration, such as in the case at bar, the sole purpose of the proceeding is to determine arbitrability. Therefore, the right to arbitrate is the right asserted in the case and the issue of arbitrability is not a collateral issue. q

Accordingly, in2a special proceeding initiated for the purpose of determining arbitrability, the requirement of a separate final judgment set forth in HawaFi Rules of Civil Procedure (HRCP) Rule 58 applies and "[a]n appeal may be taken . . . only after the orders have been reduced to a judgment

and the judgment has been entered in favor of and against the

appropriate parties pursuant to HRCP [Rule] 58[.]" See Jenkins v. Cades Schutte Fleming & Wriqht, 76 HawaFi ll5, 119, 869 P.2d 1334, 1333 ~(1994). Tnere is nc`> separate final judgment filed in

this case and we therefore lack appellate jurisdiction. For these reasons, IT IS HEREBY ORDERED that Appeal No. 30l82 is dismissed. DATED= Honolulu, Hawai‘i, MaY 211 2010-

Chief Judge

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Associate Judge